Release valid to stop a claim for an injury on a tubing hill in IowaPosted: October 17, 2016
Attempt to reclassify a tubing hill as a carnival or amusement ride also failed by the plaintiff.
Plaintiff: Pamela J. Lathrop, Individually and as Next Friend of D. Scott Lathrop, a Minor, and Sarah N. Lathrop, a Minor
Defendant: Century, Inc., d/b/a Mt. Crescent
Defendant Defenses: Release
Holding: For the defendant
The opportunity to analyze an outdoor recreation case in Iowa is rare. Writing about one concerning a tubing hill is probably a once in a lifetime opportunity.
A mother and her two children went tubing at the defendant’s tubing hill. Before entering the premises “they” signed a release. Later, the court clarified this and stated the mother and two children signed the release.
After taking several trips down the hill, the mother went down going faster than she expected. She went over a bump and was thrown from the tube landing on her back and head.
All three signed the form. They entered, and took several trips up and down the hill. After they had been snow tubing for roughly an hour, Pamela, on a trip down the hill, traveled faster than she expected. She went over a bump at a high speed, became airborne and was thrown from the snow tube. She landed on her back and hit her head on the ramp. She was later diagnosed with a compression/explosion fracture of L2 with canal compromised.
The mother on her own behalf and on behalf of her two children filed a lawsuit. The district court granted the defendant tubing hill’s motion to dismiss, and this appeal followed.
Analysis: making sense of the law based on these facts.
The plaintiff’s appeal was based on six allegations. The appellate court took each allegation and through it out with simple response. The first allegation was the release was ambiguous.
The ambiguity in the release was based on the use of the terms “event” and “restricted area.” However, the trial court and the appellate court found there was no ambiguity in the release.
Lathrop entered a restricted area, as defined by the release, when she entered the tubing park. She was not allowed to enter until she paid the admission price and signed the release and the area was therefore restricted from the general public. We find no error with the district court’s conclusion that the release applied to Lathrop.
The second argument was the plaintiff’s lack of awareness about the risks of tubing should void the release. Under Iowa law, the parties to a release must not have known of the precise circumstances leading to the injury to the plaintiff, only that there could be a broad range of accidents that could occur. She argued a jury should have the right to decide if she contemplated the injury she received.
The court did not agree with this argument.
We conclude a reasonable juror could not find the Lathrop’s assertion of ignorance plausible. One need not be an experienced snow tuber to anticipate that, while sliding down a snow-covered hill at a fast rate on an inflated tube, one might be thrown from the tube. Accordingly, we find no error on this issue by the district court.
The third argument of the plaintiff was the Iowa Amusement or Carnival statute. The statute requires carnivals to carry liability insurance. Therefore, the plaintiff argued the use of a release is against public policy.
However, the court found that the statute referred did not refer to tubing hills. As such, there was no need to determine if the statute and public policy prevented the use of a release.
We agree with the ruling of the district court that the Mt. Crescent snow tubing facilities do not fall under the definition of carnival or amusement ride or device in Iowa Code section 88A. We therefore need not decide whether the provisions of this code chapter implicitly preclude the use of releases of liability by such facilities.
The fourth argument was the specific release fell within an exception to the general enforceability of releases. There could not be an exception to the rule, “unless there preservation of the general public welfare imperatively so demands.”
While the court in Baker does not provide a precise framework for analyzing the appropriateness of a public policy exception in a specific situation, it does suggest, as an example, that a professional providing a service of great importance to the public would not be allowed to contract to avoid liability for negligence. We conclude snow tubing, a purely recreational activity, is not of such great importance to the public as to justify an exception to the general rule. The district court did not err by failing to recognize a public policy exception to the general enforceability of releases of liability in this case.
The fifth argument was if the release was enforceable, it only released the defendant from unavoidable and inherent risks of tubing and not from unnecessarily dangerous conditions or general negligence. The plaintiff could find no legal support for this claim, and the appellate court dismissed it with the statement: “The appellate courts of this state have consistently upheld the validity of broadly worded releases.”
The final argument was the minor’s claims could not be waived because a parent could not waive a minor’s claims. However, due to technical requirements, the issue was not properly addressed, and the error was not preserved for appeal.
The appellate court upheld the trial court’s dismissal of the claims.
So Now What?
The only issue of interest raised in the appeal was whether or not the injured plaintiff could understand the risks she was signing away. However, the court looked at this not as a requirement the release lists all the possible injuries a plaintiff could suffer, but only that the plaintiff has a general knowledge that she could be injured.
What do you think? Leave a comment.
If you like this let your friends know or post it on FB, Twitter or LinkedIn
Copyright 2016 Recreation Law (720) Edit Law
Facebook Page: Outdoor Recreation & Adventure Travel Law
Mobile Site: http://m.recreation-law.com
By Recreation Law Recfirstname.lastname@example.orgJames H. Moss
#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Iowa, Tubing Hill, Release, Ambiguity, Public Policy,